Citation NR: 9739733
Decision Date: 11/28/97 Archive Date: 12/03/97
DOCKET NO. 96 - 37 110 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
Whether the claim of entitlement to service connection for an
acquired psychiatric disability, including post-traumatic
stress disorder, manic-depressive illness, and schizophrenia,
is well grounded.
Whether the claim of entitlement to service connection for a
back disability, including arthritis, is well grounded.
Whether the claim of entitlement to service connection for
hypertension is well grounded.
Whether the claim of entitlement to service connection for
hypothyroidism is well grounded.
Whether the claim of entitlement to service connection for
partial paralysis of the upper extremities is well grounded.
Whether the claim of entitlement to service connection for
disability of the lower extremities is well grounded.
Whether the claim of entitlement to service connection for a
skin disorder, including tinea pedis, is well grounded.
Whether the claim of entitlement to service connection for
residuals of trichloroethylene exposure is well grounded.
Whether the claim of entitlement to service connection for
unspecified combat injuries is well grounded.
Whether the claim of entitlement to service connection for
organic brain syndrome, as residual to Agent Orange exposure,
is well grounded.
Whether the claim of entitlement to service connection for
hypothyroidism, as residual to Agent Orange exposure, is well
grounded.
Whether the claim of entitlement to service connection for a
liver disorder, including porphyria cutanea tarda, as
residual to Agent Orange exposure, is well grounded.
Whether the claim of entitlement to service connection for a
skin disorder, including tinea pedis, as residual to Agent
Orange exposure, is well grounded.
Whether the claim of entitlement to service connection for
damaged sweat glands, as residual to Agent Orange exposure,
is well grounded.
Whether the claim of entitlement to service connection for
bilateral defective vision due to aggravation, as residual to
Agent Orange exposure, is well grounded.
Whether the claim of entitlement to service connection for
back problems, as residual to Agent Orange exposure, is well
grounded.
Whether the claim of entitlement to service connection for
pain of multiple joints, as residual to Agent Orange
exposure, is well grounded.
Whether the claim of entitlement to service connection for
peripheral neuropathy, as residual to Agent Orange exposure,
is well grounded.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Frank L. Christian, Counsel
INTRODUCTION
The veteran served on active duty from November 1968 to
November 1971, including service in the Republic of Vietnam
from April 1969 to April 1970 and from February to November
1971.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decisions of May 1996,
November 1996, and December 1996 from the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO erred in failing to grant
entitlement to service connection for an acquired psychiatric
disability, including post-traumatic stress disorder (PTSD),
manic-depressive illness, and schizophrenia; for a back
disability, including arthritis; for hypertension; for
hypothyroidism; for partial paralysis of the upper
extremities; for disability of the lower extremities; for a
skin disorder, including tinea pedis; for residuals of
trichloroethylene exposure; and for unspecified combat
injuries because it did not take into account or properly
weigh the medical and other evidence of record. It is
contended that he served two tours in the Republic of Vietnam
with Companies B and C, 2nd Battalion, 319th Artillery; 101st
Airborne Division; that he removed bodies and pieces of
bodies from concertina wire; that he was exposed to
trichloroethylene; and that he is entitled to direct or
presumptive service connection for the claimed disabilities.
It is further contended that the RO erred in failing to grant
service connection for organic brain syndrome; for
hypothyroidism; for a liver disorder; for a skin disorder,
including tinea pedis; for damaged sweat glands; for
bilateral defective vision on the basis of aggravation; for
back problems; for pain of multiple joints, and for
peripheral neuropathy, each claimed as residual to Agent
Orange (AO) herbicide exposure, because it did not take into
account or properly weigh the medical and other evidence of
record. It is further contended that while serving in the
Republic of Vietnam, he was exposed to AO herbicide, and that
he has developed the disabilities claimed as AO-related as a
consequence of such exposure.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not
submitted evidence sufficient to justify a belief by a fair
and impartial individual that his claims of entitlement to
direct or presumptive service connection for an acquired
psychiatric disability, including PTSD, manic-depressive
illness, and schizophrenia; for a back disability, including
arthritis; for hypertension; for hypothyroidism; for partial
paralysis of the upper extremities; for disability of the
lower extremities; for a skin disorder, including tinea
pedis; for residuals of trichloroethylene exposure; and for
unspecified combat injuries are well grounded.
It is the further decision of the Board that the appellant
has not submitted evidence sufficient to justify a belief by
a fair and impartial individual that his claims of
entitlement to service connection for organic brain syndrome;
for hypothyroidism; for a liver disorder, including porphyria
cutanea tarda; for a skin disorder, including tinea pedis;
for damaged sweat glands; for bilateral defective vision on
the basis of aggravation; for back problems; for pain of
multiple joints, and for peripheral neuropathy, each claimed
as residual to Agent Orange exposure, are well grounded.
FINDINGS OF FACT
1. An acquired psychiatric disability, including post-
traumatic stress disorder, manic-depressive illness, and
schizophrenia; a back disability, including arthritis;
hypertension; hypothyroidism; partial paralysis of the upper
extremities; disability of the lower extremities; a skin
disorder, including tinea pedis; residuals of
trichloroethylene exposure; and unspecified combat injuries
were not manifest during active service or at the time of
service separation; psychosis, arthritis, hypertension, and
organic disease of the central nervous system were not
manifest during the initial postservice year.
2. The current presence of an acquired psychiatric
disability, including PTSD, manic-depressive illness, and
schizophrenia; a back disability, including arthritis;
hypertension; hypothyroidism; partial paralysis of the upper
extremities; disability of the lower extremities; a skin
disorder, including tinea pedis; residuals of
trichloroethylene exposure; and unspecified combat injuries
has not been demonstrated or diagnosed.
3. A personality disorder, the appellant’s only diagnosed
psychiatric disability, and refractive errors of vision are
not disabilities for which service connection may be granted.
4. Organic brain syndrome; hypothyroidism; a liver disorder,
including porphyria cutanea tarda; a skin disorder, including
tinea pedis; damaged sweat glands; bilateral defective vision
on the basis of aggravation; back problems; pain of multiple
joints, and peripheral neuropathy, each claimed as residual
to Agent Orange exposure, were not manifest during active
service, at the time of service separation, or during the
initial postservice year.
5. The current presence of organic brain syndrome;
hypothyroidism; a liver disorder, including porphyria cutanea
tarda; a skin disorder, including tinea pedis; damaged sweat
glands; bilateral defective vision on the basis of
aggravation; back problems; pain of multiple joints, and
peripheral neuropathy, each claimed as residual to Agent
Orange exposure, have not been demonstrated or diagnosed.
6. The claims of entitlement to an acquired psychiatric
disability, including PTSD, manic-depressive illness, and
schizophrenia; a back disability, including arthritis;
hypertension; hypothyroidism; partial paralysis of the upper
extremities; disability of the lower extremities; a skin
disorder, including tinea pedis; residuals of
trichloroethylene exposure; and unspecified combat injuries
are not plausible.
7. The claims of entitlement to organic brain syndrome;
hypothyroidism; a liver disorder, including porphyria cutanea
tarda; a skin disorder, including tinea pedis; damaged sweat
glands; bilateral defective vision on the basis of
aggravation; back problems; pain of multiple joints, and
peripheral neuropathy, each claimed as residual to Agent
Orange exposure, are not plausible.
CONCLUSIONS OF LAW
1. The claims of entitlement to service connection for an
acquired psychiatric disability, including PTSD, manic-
depressive illness, and schizophrenia; for a back disability,
including arthritis; for hypertension; for hypothyroidism;
for partial paralysis of the upper extremities; for
disability of the lower extremities; for a skin disorder,
including tinea pedis; for residuals of trichloroethylene
exposure; and for unspecified combat injuries are not well
grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992). Caluza v. Brown,
7 Vet. App. 498 (1995), affirmed per curiam, 78 F.3d 604
(Fed. Cir. 1996).
2. The claims of entitlement to service connection for
organic brain syndrome; for hypothyroidism; for a liver
disorder, including porphyria cutanea tarda; for a skin
disorder, including tinea pedis; for damaged sweat glands;
for bilateral defective vision on the basis of aggravation;
for back problems; for pain of multiple joints, and for
peripheral neuropathy, each claimed as residual to Agent
Orange exposure, are not well grounded. 38 U.S.C.A. §§ 1110,
1153, 5107(a) (West 1991); Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498
(1995), affirmed per curiam, 78 F.3d 604 (Fed. Cir. 1996).
3. Personality disorders and refractive errors of vision are
not diseases or injuries under applicable legislation
providing for payment of VA disability compensation benefits.
38 C.F.R. § 3.303(c) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Claims Not Well Grounded
As a preliminary matter, the Board must determine whether the
veteran has submitted evidence of well-grounded claims of
entitlement to service connection for an acquired psychiatric
disability, including PTSD, manic-depressive illness, and
schizophrenia; for a back disability, including arthritis;
for hypertension; for hypothyroidism; for partial paralysis
of the upper extremities; for disability of the lower
extremities; for a skin disorder, including tinea pedis; for
residuals of trichloroethylene exposure; and for unspecified
combat injuries, as well as for organic brain syndrome; for
hypothyroidism; for a liver disorder, including porphyria
cutanea tarda; for a skin disorder, including tinea pedis;
for damaged sweat glands; for bilateral defective vision on
the basis of aggravation; for back problems; for pain of
multiple joints, and for peripheral neuropathy, each claimed
as residual to Agent Orange exposure. If he has not, his
appeal must fail, and VA is not obligated to assist him in
the development of the claims. 38 U.S.C.A. § 5107(a)(West
1991). The United States Court of Veterans Appeals (Court)
has defined a well-grounded claim as a plausible claim, one
which is meritorious on its own or capable of substantiation.
Murphy v. Derwinski, 1 Vet. App. 78 (1990). It has also
held that where a determinative issue involves a medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible is required.
Grottveit v. Brown, 5 Vet. App. 91 (1993).
For the reasons set forth below, the Board finds that the
veteran has not met his burden of submitting evidence to
support a belief that his claims of entitlement to service
connection for an acquired psychiatric disability, including
PTSD, manic-depressive illness, and schizophrenia; for a back
disability, including arthritis; for hypertension; for
hypothyroidism; for partial paralysis of the upper
extremities; for disability of the lower extremities; for a
skin disorder, including tinea pedis; for residuals of
trichloroethylene exposure; and for unspecified combat
injuries, as well as for organic brain syndrome; for
hypothyroidism; for a liver disorder, including porphyria
cutanea tarda; for a skin disorder, including tinea pedis;
for damaged sweat glands; for bilateral defective vision on
the basis of aggravation; for back problems; for pain of
multiple joints, and for peripheral neuropathy, each claimed
as residual to Agent Orange exposure, are well grounded.
38 U.S.C.A. § 5107(a)(West 1991); see Grottveit, at 93;
Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Murphy, id.
A threshold requirement for the grant of service connection
for a disability is that the disability claimed must be shown
to be present. 38 U.S.C.A. § 1110, 1131 (West 1991). The
Court has interpreted the requirement of current disability
thus:
Congress specifically limits entitlement
to service connected disease or injury to
cases where such incidents have resulted
in a disability. See 38 U.S.C.A.
§§ 1110, 1131(West 1991). In the absence
of proof of a present disability there
can be no valid claim. Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
In the instant appeal, there has been no demonstration,
diagnosis, or other showing of an acquired psychiatric
disability, including PTSD, manic-depressive illness, and
schizophrenia current; a back disability, including
arthritis; hypertension; hypothyroidism; partial paralysis of
the upper extremities; disability of the lower extremities; a
skin disorder, including tinea pedis; residuals of
trichloroethylene exposure; or unspecified combat injuries.
Further, there has been no demonstration, diagnosis, or other
showing of organic brain syndrome; hypothyroidism; a liver
disorder, including porphyria cutanea tarda; a skin disorder,
including tinea pedis; damaged sweat glands; bilateral
defective vision on the basis of aggravation; back problems;
pain of multiple joints, or peripheral neuropathy, each
claimed as residual to Agent Orange exposure.
To the contrary, the veteran’s service medical records
reflect no complaint, treatment, finding, notation, or
diagnosis of any of the claimed disabilities during active
service or on service separation examination. Further, there
has been no demonstration of any of the disabilities at issue
during the initial postservice year or at any time since
service. None of the disabilities claimed have been
demonstrated or diagnosed by competent medical evidence.
Rather, the veteran’s service separation examination,
conducted in November 1971, shows that his vascular system,
endocrine system, upper and lower extremities, feet, skin,
spine and musculoskeletal system, and psychiatric and
neurological examinations were normal, and the veteran stated
that his condition was “exelant[sic].” The evidence of
record is devoid of clinical findings establishing the
current presence of any of the disabilities at issue.
The Board further notes that a report of private
psychological testing and psychiatric evaluation of the
veteran, conducted in February 1994, shows that the veteran
neither reported nor exhibited symptoms of PTSD, manic-
depressive illness, schizophrenia, or organic brain syndrome,
and that the sole psychiatric diagnosis was a schizoid
personality disorder. Specifically, there was no evidence of
an acquired psychiatric disability, including PTSD, manic-
depressive illness, schizophrenia, or organic brain syndrome.
Governing law and regulations provide that personality
disorders are not diseases or injuries under applicable
legislation providing for payment of VA disability
compensation benefits. 38 C.F.R. § 3.303(c) (1996).
The veteran’s service entrance examination noted the presence
of a bilateral refractive error of vision. That same
bilateral refractive error of vision was noted, to a lesser
degree, at service separation examination. Aside from the
fact that no increase in disability was shown, as required by
38 U.S.C.A. § 1153 (West 1991) and 38 C.F.R. § 3.306 (1996),
refractive errors of vision are not diseases or injuries
under applicable legislation providing for payment of VA
disability compensation benefits. 38 C.F.R. § 3.303(c)
(1996).
On medical examination of the veteran by the Missouri
Department of Corrections in November 1995, the veteran
denied having any head trauma, eye problems, skin disorder,
musculoskeletal problems, hypertension or cardiovascular
problems, gastrointestinal problems, or genitourinary
problems. Physical examination disclosed no evidence of
rashes or eruptions of the skin, and audiologic examination
was negative. There was no clinical evidence of liver
disease, including porphyria cutanea tarda. His blood
pressure was normal at 122/78, there were no findings or
indications of hypertension, and he was not taking
antihypertensive or other medications. His neurological
system was normal, no residuals of trichloroethylene exposure
were shown, and there were no findings of partial paralysis
of the upper extremities or disability of the lower
extremities. No abnormalities of the arms, hands, legs, or
feet were reported, and there were no clinical findings of
combat injuries of any kind or description.
While the veteran’s assertions must generally be regarded as
credible for purposes of determining whether a well-grounded
claim has been submitted, the Court has held that a lay
person, such as the veteran, is not competent to offer
evidence that requires medical knowledge, such as the
diagnosis or cause of a disability. See Grottveit, at 93;
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). If such
testimony is not competent, it cannot be probative. The
appellant cannot meet his initial burden of presenting a
well-grounded claim by relying upon his own opinions as to
medical matters. Clarkson v. Brown, 4 Vet. App. 565 (1993);
Grottveit, at 93.
With respect to the issue of entitlement to service
connection for PTSD, the veteran’s DD Form 214 shows that he
served on active duty from November 1968 to November 1971,
including service in the Republic of Vietnam from April 1969
to April 1970 and from February to November 1971. His
military occupational specialty (MOS) was Field Artillery
Basic (13A), he received no awards or decorations for valor,
he did not receive the Purple Heart medal for combat injury,
and he did not receive the Combat Action Ribbon. His service
administrative records do not reflect that he received
Airborne training or served with the 101st Airborne Division,
as claimed, not do they reflect any assignment or detail to
graves registration. The sole stressor claimed by the
veteran is removing bodies from concertina wire, and the
Board notes that such anecdotal stories cannot be verified by
the United States Armed Services Center for Research of Unit
Records (USASCRUR), particularly as the veteran states that
he does not recall any names or dates. The veteran’s
misstatements concerning his unit of service and his history
of Airborne training persuades the Board that he is not a
reliable historian nor a credible witness. For that and
other reasons previously explained, his lay statements
concerning inservice stressors are not considered
satisfactory within the meaning of 38 U.S.C.A. § 1154(b)
(West 1991) and 38 C.F.R. § 3.304(d) (1996).
In addition, the Court has held that in order to establish a
well-grounded claim, there must be (1) competent evidence of
a current disability in the form of a medical diagnosis; as
well as (2) evidence of incurrence or aggravation of a
disease or injury in service in the form of lay or medical
evidence; together with (3) evidence of a nexus between the
inservice injury or disease and the current disability in the
form of medical evidence. Caluza v. Brown, 7 Vet. App. 498
(1995), affirmed per curiam, 78 F.3d 604 (Fed. Cir. 1996).
In this case, the requirement of item (1) is not satisfied as
to any of the issues on appeal because the medical record
contains no demonstration or diagnosis of such disabilities
on recent private psychological testing and mental and
physical examinations.
The requirement of item (2), above, that evidence be
submitted of incurrence or aggravation of a disease or injury
in service in the form of lay or medical evidence is not met
because there is no competent medical evidence that the
veteran had any of the disabilities at issue during active
service or at the time of service separation, during the
initial postservice year, or currently. Grottveit, at 93;
Espiritu, at 495.
Finally, the appellant has not met the requirement of item
(3), that he present evidence of a nexus between an inservice
injury or disease (or a service-connected disability, or AO
exposure) and any current disability in the form of medical
evidence. The Court has held that where a determinative
issue involves a medical diagnosis or medical causation,
competent medical evidence to the effect that the claim is
plausible is required. Grottveit, at 93. The appellant has
not provided any competent medical opinion or authority which
supports or substantiates his opinions that AO exposure has
caused any current disability.
Based upon the foregoing, the Board finds that the appellant
has not submitted evidence sufficient to justify a belief by
a fair and impartial individual that his claims of
entitlement to service connection for the disabilities at
issue on a direct or presumptive basis, on the basis of
aggravation, or as residual to AO exposure are well grounded.
Accordingly, those claims are denied.
The Court has held that VA has no statutory duty to assist a
veteran absent evidence of a well-grounded claim, and
cautioned VA against volunteering assistance to establish
well groundedness. Grivois v. Brown, 6 Vet. App. 136, 140
(1994). However, the Board notes that the veteran may render
his claims well grounded by submitting clinical evidence
showing the presence of the claimed disabilities during
service or at the time of service separation, or competent
medical evidence linking or relating any of the disabilities
at issue to AO exposure during active service. Robinette v.
Brown, 8 Vet. App. 69, 74 (1995).
Although the Board has considered and denied the veteran’s
claims for service connection for several of the disabilities
at issue on grounds different from that of the RO, that is,
on the basis of whether the veteran’s claims for service
connection for those disabilities are well grounded rather
than whether he is entitled to prevail on the merits, the
veteran has not been prejudiced by this decision. In
assuming that those claims were well grounded, the RO
accorded the veteran greater consideration than those
particular claims warranted under the circumstances. Bernard
v. Brown, 4 Vet. App. 384, 392-394 (1993). To remand this
case to the RO for consideration of the issue of whether the
appellant’s service connection claims denied by the RO on the
merits were well grounded would be pointless and, in light of
the legal authority cited above, would not result in a
determination favorable to the appellant. VAOPGCPREC 16-92
(O.G.C. 16-92); 57 Fed. Reg. 49, 747 (1992).
ORDER
Evidence of well-grounded claims of entitlement to service
connection for an acquired psychiatric disability, including
PTSD, manic-depressive illness, and schizophrenia; for a back
disability, including arthritis; for hypertension; for
hypothyroidism; for partial paralysis of the upper
extremities; for disability of the lower extremities; for a
skin disorder, including tinea pedis; for residuals of
trichloroethylene exposure; and for unspecified combat
injuries not having been submitted, those claims are denied.
Evidence of well-grounded claims of entitlement to service
connection for organic brain syndrome; for hypothyroidism;
for a liver disorder, including porphyria cutanea tarda; for
a skin disorder, including tinea pedis; for damaged sweat
glands; for bilateral defective vision on the basis of
aggravation; for back problems; for pain of multiple joints,
and for peripheral neuropathy, each claimed as residual to
Agent Orange exposure, not having been submitted, those
claims are denied.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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